June 29, 2009

Did Justice Alito Say Something About President Obama's Views of Judging and Empathy in Ricci?

There's been so much written about President Obama's call to appoint a judge with empathy (my early take, before Judge Sotomayor was nominated, is here). So I was struck by this sentence in Justice Alito's concurrence in the Ricci case today:

The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." Post, at 1, 39. But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them.

Putting aside the merits of the decision in Ricci (on that question, don't miss this Slate series by Nicole Allen and Emily Bazelon), am I wrong to read this as a dig at the President's view?

In the opinion there was no reference to the fact that the Court was overturning a ruling by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit that included Supreme Court nominee Sonia Sotomayor. But Ginsburg did get off one shot, noting that the white and Hispanic applicants who passed the exam only to have the results tossed out "understandably attract the Court's empathy." In the text of her opinion, she used the word "sympathy" instead of empathy, but "empathy" is the word President Barack Obama has used to describe a quality he wants in a justice. Conservatives have attacked Obama and, through him, Sotomayor, for valuing that criterion, and Ginsburg's comment was a pointed assertion that conservatives use empathy too. Joining Ginsburg in dissent were John Paul Stevens, David Souter, and Stephen Breyer.